CIVIL PROCESS

1. CIVIL PROCESS CITATIONS

2. LEARNING OBJECTIVES • CITATIONS • What makes a legal citation • Petition • Types Of Service • Officers Return • SUBPOENAS • ETHICS

3. CITATION GLOSSARY • Acknowledgement– The formal declaration before an authorized official, such as a notary, by a person who executed the instrument, that it is his free act and deed. The certificate of the officer on such instrument that it has been so acknowledged • Affidavit of Service - An affidavit intended to certify the service of a writ, notice, summons or other documents or process • Answer - A defendant’s written reply to a plaintiff’s petition

4. Citation - a writ issued out of a court of competent jurisdiction, commanding a person therein named to appear on a day named and do something therein mentioned, or show cause why he or she should not. The beginning of a lawsuit. • Default Judgment - a judgment entered upon the failure of a party to plead or appear at the appointed time. • Defendant - A party in a civil suit, namely, the party against whom a court action is initiated • Delivery - Service of civil process, including date and officer’s signature

5. Disqualified – A term used to described the state of an officer who has an interest in the outcome of a civil suit. Such an officer may not serve process in that suit • Judgment - The final order of a court in a civil suit which settles all dispute issues and determines the rights of the parties with regard to the subject matter of the suit. • Jurisdiction - The power of a court to lawfully act with regard to person and property

6. Petition - A document filed by the plaintiff with the clerk of the court which outline the basis of the complaint against the defendant and the relief being sought from the court. • Plaintiff - A party in a civil suit, namely, the one who starts the suit by filing a petition • Publication - The process of giving a summons as an advertisement in a newspaper, under the conditions prescribed in Rule of Civil Procedure, as a means of giving notice to the suit to a defendant upon whom personal service cannot be made. • Receipt - Producing written receipt for the fees collected for service of process which includes the county stamp.

7. Return – The endorsement made by a sheriff or constable upon a writ or notice, stating what he has done under it and time method of service. • Service – The delivery of a writ, notice injunction, etc., by an authorized person to a person who is thereby officially notified of some proceeding concerning him • Subpoena - A process to cause a witness to appear and give testimony commanding him to appear at a specified place at a specified time to testify for the party named therein. • Subpoena Duces Tecum – A subpoena that directs witness to bring with him and produce at that time any instrument of writing or other thing desired as evidence.

8. Substituted Service - Any form of service of process other than personal service, such as service by mail or by publication in a newspaper, service of a writ or notice on some person other than the one directly concerned, for example, his attorney of record who has authority to represent him or to accept service for him. • Summons - An order to appear in court issued to a defendant by the court itself. • Tender - An offer of money. Essential characteristics of Tender are unconditional offer to perform coupled with manifested Ability to carry out the offer and production of subject matter.

9. Diligence – Persistent activity, prudence or care, “due diligence” is that which is properly expected from a reasonable and prudent person under the particular circumstances

10. DILIGENCE The opposite of diligence: • LAZINESS • NEGLIGET

11. DILIGENCE DETERMINES THE OUTCOME OF THE CASE “DOCUMENT” DILIGENCE If it is not documented, IT DIDN’T HAPPEN !!

12. CITATIONThe 1st Notice of a Lawsuit • It is the start or foundation of a lawsuit • Must be served with a petition attached (explanation of why a person is being sued) • It is a command to the defendant (person being sued) to answer to the court • Officer’s duty is to deliver and return affidavit to court

13. TEXAS RULES OF CIVIL PROCEDURE • Governs service of process • Purpose is to obtain a just, fair, equitable and impartial adjudication of rights under established principles of law • Failure to comply with the Rules of Civil Procedure would render service void.

14. WHO MAY ISSUE? • Justice and Small Claims Court • County Courts (Constitutional & Statutory) • District Courts (Criminal, Civil & Family) • Probate Courts • Juvenile Courts

15. Jurisdictional Dollar Amount per Court Min Max Justice of the Peace No Minimum $ 10,000 Small Claims Court No Minimum $ 10,000 County Court at Law $500 $ 100,000 Constitutional County Ct. $200 $ 5,000 District Court $500 $ No Limit Court of Appeals Civil & Criminal Appellate Jurisdiction Supreme Court of Texas Civil & Juvenile Appeals TX Court Of Criminal Appeals Criminal Appeals

16. BEGINNING TO END • Each citation is immediately dated and time stamped upon receipt • Services fees receipted • Entered into tracking system • Stamped with “delivery endorsement

17. PARTS OF A CITATION • Styled “The State Of Texas” • Signed by the clerk under the seal of the Court • Contain the name and location of the Court • Show the filing date of the petition • Show the date of the issuance of citation Continued next pg

18. PARTS OF A CITATION • Show the file (cause) number • Show the name(s) of the party • Be direct to the defendant • Show the name and address of the attorney for the plaintiff, otherwise the address of the plaintiff Continued next pg

19. PARTS OF A CITATION • Contain the time within which these rules require the defendant to file a written (an oral answer – small claims) answer with the clerk who issued the citation Answer in: • Small Claims & Justice Court – Mondaynext following expiration of 10 days ; District & County Court Monday next following expiration of 20days TRCP 534

20. Contain the address of the clerk • Shall notify the defendant that in case of failure of the defendant to file an answer, judgment by default may be rendered for the relief demanded in the petition

21. Must Be Served By • Any Constable or constable’s deputies • Any Sheriff or sheriff’s deputies • Any person authorized by law or by written order of the court who is not less than 18 years of age TCP 103,536

22. Are You Disqualified? • A party to the suite • Stand to receive monetary gain from the outcome • Deputy’s spouse is party to the suite

23. Texas rules Civil Procedure Rule 103 Who May serve New Changes

24. Who May serve Process – Including citation and other notices, writs, orders and other papers issued by the court – may be served • Any constable or sheriff or other person authorized by law (2) Any person authorized by law or by written order of the court who is not less than eighteen years of age or

25. (3) Any person certified under order of the Supreme Court. Service by registered of certified mail and citation by publication must, if requested, be made by the clerk of the court in which the case is pending. But no person who is a party to or interested in the outcome of a suit may serve any process in that suit, and, unless otherwise authorized by a written court order, only a constable or sheriff may serve a citation in an action of Forcible Entry and Detainer, a writ that requires the actual taking of possession of a person, property or thing, or process requiring that an enforcement action be physically enforced by the person delivering the process. The order authorizing a person to serve process may be made without written motion and no fee may be imposed for issuance of such order.

26. Texas Rules Civil Procedure 105 Process be executed and returned without delay

27. Methods of Service • In person, with date of delivery and signature of the officer • Motion supported by affidavit substitute service • Certified or registered mail – return receipt requested

28. Service by Publication Published once a week four weeks in a row Shall be at least 28 days before the return day of the citation Publish in the newspaper of the county where suit is to be tired.

29. Service by Publication When the suit is for title to land, the place of publication is in the county where the land is located Publication may appear in Sundays paper Publication in family code published (1) time only

30. Service on an Entity • Corporation - President, Vice President • Registered Agent • Secretary of State (requires extra copy of citation & petition and $50) • Partnership – Partner • Political subdivision-mayor, county judge • DBA - owner

31. PERSONAL DELIVERY • Always the best • Directed to the defendant and delivered once the defendant is identified • No other person may be served • Must deliver citation along with attached petition • Must endorse service copy with date and officer’s signature

32. Substitute Service • County and District Courts • Small Claims And Justice Court • Texas Rules of Civil Procedure #536 &742a • Texas Rules of Civil Procedure # 106

33. What Forms to Use? The court specifies the accepted form for each case. No other form may be used without the courts permission

34. Method of Service • Leave a copy of the citation, petition and affidavit with anyone sixteen years of age and older, at a specified location either defendant’s usual place of business or abode or any other place defendant might be found • Attaching copy of the citation, petition and affidavit to the usual place of abode or business

35. The court may authorize any other method which will give the defendant proper notification of the suit

36. Service by Mail • Must be by registered or certified mail, return receipt requested • May be used when address is Post Office Box and defendant can not be served at business or residence or out of jurisdiction of officer • May not always be good service

37. Citation by Publication Return(TRCP 117) Returns on Publication are completed in the same manner as in personal service but shall include; • The dates of Publication • Accompanied by a printed copy of the publication ( A publisher’s affidavit is recommended)

39. Liability – Texas LocalGovernment Code 86.024 • By law - citations DO NOT expire • Must be served as quickly as possible • Officer may be held in contempt for neglect or refusal and may be liable for damages by the injured party. ( Constable can be held liable for not less than Ten Dollars and not more than One-Hundred Dollars and costs)

40. Citation in Tax Suits • Personal – petition need not be attached • Publication – defendant to appear after expiration of forty-two days on Monday first after 10 o’clock • Published one time a week – 2 weeks • Expire 90 days

41. Tax Citation Return • Tax citations shall require personal service except when authorized by alternate service. • The number of Valid attempts are set by the issuing court to obtain alternate service. • The manner of service shall be documented with the Tax Citation’s Return (Attempts may be included)

42. Officer’s Return • Complete when service has completed • Include when received, where it was served, when it was served, who was served, how it was served • Service by certified or registered mail must – include signed “green” card & receipt

43. TRCP 107 You may either: Complete and endorse the Return, or Attach a Complete Return to the Process

44. TRCP 107 It Shall State: When the Citation was Served (Delivered) and the Manner of Service.

45. TRCP 107 It shall be signed by the officer ”Officially” This means that the elected Constable or Sheriff’s name SHALL be on the return and the delivering Officer’s Signature shall be endorsed thereon. (LEGIBLE ?)

46. TRCP 107 “SWORN RETURN” Only Affidavits and Out of State Returns need to be Notarized, as Officers are Sworn under Oath in TEXAS

47. TRCP 107 “Certified Mail” – Service allowed by Rule 106a, Rule 107 requires that the return is completed by The officer and the return receipt or “green card” Signed by the addressee is attached to the return

48. TRCP 107 Delivery NOT Effected • Shall show the Diligence used • Cause Of Failure to Execute it • Where defendant can be Found, if known

49. TRCP 107 Show the Diligence used What constitutes valid attempts? 1. A trip to the physical address. 2. Different dates and times. 3. Knocking on the front door. 4. Speaking with a neighbor, apartment manager

50. TRCP 107 Show Diligence Used • Registration on vehicle(s) at premises • Investigate for a phone number & call it • Utilize an appraisal district (tax or deed records)